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Article III's case or controversy restriction precludes federal courts from declaring law except in the context of litigation by parties with a personal stake in a live dispute that judicial decision can affect. They may not resolve moot questions—questions whose resolution can no longer affect the litigants' dispute because events after the commencement of litigation have obviated the need for judicial intervention. However live the issues once were, however much the parties (and the public) may desire a declaration of law, and however far the litigation may have progressed when the mooting events occur, Article III requires dismissal of the lawsuit. Common examples include a criminal defendant's death during appeal of a jail sentence, enactment of a new statute superseding one whose enforcement the plaintiff seeks to enjoin, or full satisfaction of a party's litigation demands.

Other cases exhibit less certainty that the substantive issues raised no longer need judicial action to forestall anticipated harm. In these cases, mootness questions are more troublesome. They inevitably introduce discretion to exercise or withhold judgment, discretion potentially influenced by the substantive issues' public importance. Thus, in defunis v. odegaard (1974) a divided Supreme Court refused to decide the constitutionality of a race-conscious affirmative action program for law school admissions when it appeared fairly certain that the challenger, who had only become a student through lower court victories, would be graduated irrespective of the lawsuit's outcome.

several doctrines reveal mootness to be a matter of degree. First, when changed circumstances moot the main dispute, but adjudication could produce collateral consequences, the issue is not moot, as when a prisoner's sentence expires before his appeal is decided, but the conviction might subject him to other civil or criminal penalties. Second, cases where defendants voluntarily agree to refrain from challenged behavior are not moot absent proof that they are unlikely to resume the behavior. This rule protects plaintiffs by preventing defendants from manipulating the mootness doctrine to avoid adverse decisions. Third, issues are not moot, despite passage of the immediate problem, when they are "capable of repetition, yet evading review," that is, when they arise sporadically, do not persist long enough to be reviewed before ceasing each time, and are reasonably likely to threaten the challengers again. Suits challenging election rules, where the immediate election passes before judicial resolution but the rules probably would affect the challengers in subsequent elections, or litigation challenging an abortion restriction that necessarily can apply to a woman only during the term of pregnancy are important instances where an unbending application of the mootness doctrine might deny judicial protection to persons periodically subject to harm. Finally, the Court generously allows a class action to continue, despite developments eliminating any need to protect the party bringing the lawsuit on behalf of the class, if the case is not moot as to other members of the class.

These refinements give federal courts some flexibility either to reach issues of their choice without pressing necessity to protect the parties or to decline to rule by insisting on a higher degree of probability that the threat of harm continues. Like other justiciability doctrines, mootness is not only a constitutional doctrine itself but a somewhat pliable tool of constitutional governance.

Jonathan D. Varat


Note 1974 The Mootness Doctrine in the Supreme Court. Harvard Law Review 88:373.